United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1820
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Donny Bear Robe, *
*
Appellant. *
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Submitted: December 11, 2007
Filed: April 7, 2008
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
After Donny Bear Robe violated the terms of his supervised release, the district
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court sentenced him to the maximum 24 months’ imprisonment allowed under 18
U.S.C. § 3583(e)(3), to be followed by 12 months of additional supervised release.
The advisory sentencing guidelines recommended 3 to 9 months’ imprisonment for
his revocation offense. USSG § 7B1.4(a). Bear Robe appeals his sentence, arguing
that the district court failed adequately to consider 18 U.S.C. § 3553(a) in selecting
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The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
the term of imprisonment, and that the term is substantively unreasonable. We hold
that the district court’s sentence was not an abuse of discretion, and we therefore
affirm.
On December 14, 2004, Donny Bear Robe pled guilty to one count of
involuntary manslaughter. While intoxicated, he led police on a high speed pursuit,
during which a passenger in the open bed of his pickup truck was ejected and killed.
The district court sentenced Bear Robe to 24 months’ imprisonment, followed by 36
months’ supervised release. Bear Robe served the term of imprisonment and began
his term of supervised release on August 30, 2006.
Four months later, Bear Robe was arrested for public intoxication and driving
while intoxicated with a blood alcohol concentration reading of 0.214 percent. There
were three passengers in the vehicle at the time of his arrest. Bear Robe failed to
report the arrest to his probation officer, as required by the terms of his supervised
release, and when the probation officer eventually learned of the arrest, Bear Robe
stated that the arrest had been a misunderstanding, that he had not consumed alcohol
prior to the arrest, and that he had been the designated driver for his girlfriend and her
friends that night.
The government petitioned to revoke Bear Robe’s supervised release based on
his consuming alcohol, driving while under the influence of alcohol, failing to report
his arrest, and lying to his supervision officer. The district court revoked Bear Robe’s
supervised release, and imposed the sentence of 24 months’ imprisonment to be
followed by 12 months of supervised release.
In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court set forth a
procedure for district courts to conduct sentencing. First, district courts are to
calculate the applicable guidelines range. Id. at 596. Second, district courts must
“consider all of the § 3553(a) factors to determine whether they support the sentence
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requested by a party.” Id. The district court may not presume that the guidelines
range is reasonable, but a major variance from the guidelines should be justified by
more significant reasons that a minor one. Id. at 596-97. Third, the district court
“must adequately explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.” Id. at 597.
On appeal, we may consider both the procedural soundness of the district
court’s decision and the substantive reasonableness of the sentence imposed. The
statute applicable to revocations of supervised release directs the court of appeals to
determine whether a revocation sentence is “plainly unreasonable,” 18 U.S.C.
§ 3742(e)(4), but we have held after Booker that the same “reasonableness” standard
applies to both initial sentencing decisions and revocation proceedings. United States
v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); accord United States v. Bolds, 511 F.3d
568, 578 (6th Cir. 2007); but see United States v. Hernandez-Martinez, 485 F.3d 270,
273-74 (5th Cir. 2007); United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).
According to Gall, we review the substantive reasonableness of a sentence under a
deferential abuse of discretion standard. 128 S. Ct. at 597.
We hold that the district court did not abuse its discretion in sentencing Bear
Robe to the statutory maximum term of imprisonment, followed by an additional
period of supervised release. The district court began the process by correctly
calculating the advisory guideline range to be 3 to 9 months’ imprisonment. See
USSG § 7B1.4(a). Bear Robe then argued that he should receive a more lenient
sentence than recommended by the advisory range. He relied on the fact that his
violation was caused by severe alcoholism, and that he had registered twice previously
for treatment, but was placed on waiting lists both times. He also argued that
imprisonment would disrupt care for his four year-old son, although he later admitted
that the child lived with Bear Robe’s father, who was “more than willing to help [Bear
Robe] take care of him.”
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After hearing these points, the district court noted its obligation to consider 18
U.S.C. § 3553(a). In imposing the maximum sentence permitted under the statute, the
district court emphasized three factors. First, given the similar nature of Bear Robe’s
revocation offense and original offense, the district court believed that the maximum
term of imprisonment was required to deter Bear Robe from drinking and driving
again in the future. Second, the court believed that Bear Robe’s repeated drinking
while on supervised release showed that he was unlikely to undergo rehabilitation
without the constant supervision provided by incarceration. Third, the court took into
account the fact that Bear Robe did not accept responsibility for his previous crime
and continued to deceive and manipulate his supervision officer.
We are satisfied that the district court considered the factors set forth in 18
U.S.C. § 3553(a), with reference to the individual circumstances of Bear Robe’s case.
The court provided persuasive reasons to justify the sentence imposed. Particularly
given the impermissibility of proportionality review after Gall, 128 S. Ct. at 596, we
see no basis to conclude that the district court abused its discretion in sentencing Bear
Robe to 24 months’ imprisonment followed by 12 months’ supervised release. The
judgment of the district court is affirmed.
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